Although the Supreme Court is supposed to be immune from outside influences and pressure, the timing of the controversy surrounding the treatment of Iraqi prisoners could not have come at a better time for the lawyers challenging the Guantanamo detentions and the detention of US citizens as enemy combatants.
As respects Guantanamo, concerns of abuse or torture can’t be discounted, especially since we are now seeing reports that much of the abuse at the Iraqi prisons started after a visit last summer by the man in charge of Camp X-Ray in Guantanamo Bay, who said he was going to “Gitmoize” the operation. Still, I think there is a more core issue that can’t be overlooked and that is implicated by both Gitmo and the Hamdi and Padilla detentions.
A Red Cross report (warning, large PDF file) states that between 70% and 90% of the persons deprived of their liberty in Iraq were “arrested by mistake.” Under the administration’s scheme, though, detainees have no way to raise that question. As counsel for the Gitmo detainees mentioned in his opening statement at the oral arguments, under the Bush administration’s view of the law, “the fact that they have been wrongfully detained [doesn’t] makes the slightest difference.”
This is even more pertinent to the Hamdi and Padilla cases. One of the issues presented the Supreme Court in Hamdi is whether the executive branch can detain an American citizen indefinitely in military custody with no opportunity to question the factual basis for his detention before an impartial tribunal. As his attorney told the Supreme Court: “We have never authorized detention of a citizen in this country without giving him an opportunity to be heard, to say, “Hey, I am an innocent person.'”
If the Red Cross statistics don’t show why an impartial tribunal is essential if for no other reason than to say, “You’ve got the wrong person,” almost nothing does.